This week's lecture is by Michael Jordan Laskey and makes a number of claims I find problematic, especially in this passage:

We don’t get to bail. God requires our cooperation to take care of the planet and his children living here.

In the United States, one common reason Christians give for avoiding politics is fear of violating “the separation of church and state” – a phrase that doesn’t even appear in the United States Constitution, by the way. While our country’s founders didn’t want the government to sponsor or impinge on any particular religious tradition, the U.S. bishops argue in their CST document Forming Consciences for Faithful Citizenship that people of faith have the “moral obligation” to use their free speech rights to bring their values and voices to the public square.

That passage is implicated by our main assignment for this week, which is to discuss (in just 150-200 words) "Imagine you have a Catholic friend who’s reluctant to get involved in politics in any way. In your own words, gently and persuasively describe why tuning out is not an option."

First, the lesson implies that there are uniquely Catholic positions on highly contested issues that all Catholics ought to espouse. Laskey's commentary, for example, at least implicitly assumes that Catholic political action would support amnesty for illegal immigrants and government spending on various social programs. On the other hand, he also offers what I would regard as a very liberal (in at least two senses of the word) reading of the Church's teaching on when it is licit to vote for a pro-abortion candidate. (Tellingly, perhaps, he chooses to call them "pro-choice" candidates.) In my view, the Church gives us a lot of leeway on issues like immigration and spending and much less so on issues of life.

Second, Laskey ignores the compelling questions about whether continued Catholic participation in the liberal social order is either desirable or even possible. Analyzing that question in this short a space is impossible, but suffice it to say that anybody thinking about the role of faith in the modern American public square needs to read Rod Dreher's book The Benedict Option: A Strategy for Christians in a Post-Christian Nation. It may be the case that the faithful remnant need to tune out so as to build an ark within which we can survive the coming storms of post-Christian America. Or, as Dreher puts it, if we can’t even keep our own hearts, our families, and our churches stable, ordered, and faithful; and if we can’t even pass on the faith to our children, what makes us Christians think that our ideas for how the state ought to be run are the thing we should focus our passion on?

Having said that, of course, I'm not much of one for monasteries or arks. So when the instructor asked the question "When you hear the words religion and politics together, what thoughts, feelings, or images come to your mind?," what came to mind was something Archbishop Charles Chaput wrote some years ago:

Politics is where the competing moral visions of a society meet and struggle. And since the overwhelming majority of American citizens are religious believers, it’s completely appropriate for people and communities of faith to bring their faith into the public square.

Real pluralism always involves a struggle of ideas. Democracy depends on people of conviction fighting for what they believe in the public square – non-violently, respectfully and ethically, but also vigorously and without embarrassment. People who try to separate their private convictions about human dignity and the common good from their involvement in public issues are not acting with integrity, or with loyalty to their own principles. In fact, they’re stealing from their country.

To be healthy, the political process demands that people conform their actions to their beliefs. For Catholics to be silent in an election year -- or any year -- about critical public issues because of some misguided sense of good manners, would actually be a form of theft from our national conversation.

Hence, when the instructor asked "Are you ever tempted to totally disengage from politics and current events?," I again look to Archbishop Chaput:

For religious believers not to advance their convictions about public morality in public debate is not an example of tolerance. It’s a lack of courage.

If we believe that a particular issue is gravely wrong and damaging to society, then we have a duty, not just a religious duty but also a democratic duty, to hold accountable the candidates who want to allow it. Failing to do that is an abuse of responsibility on our part, because that’s where we exercise our power as citizens most directly – in the voting booth.

In his justly famous decision in The T.J. Hooper, 60 F.2d 737 (2d Cir. 1932), Judge Learned wrote that:

... in most cases reasonable prudence is in fact common prudence; but strictly it is never its measure; a whole calling may have unduly lagged in the adoption of new and available devices. It never may set its own tests, however persuasive be its usages. Courts must in the end say what is required; there are precautions so imperative that even their universal disregard will not excuse their omission.

In other words, in negligence cases, courts will usually defer to industry standards but in some cases courts will be prepared to say that a universal industry custom may be so deficient as to itself be negligent.

Contrast that approach to Delaware's consistent jurisprudence on corporate governance best practices. The invaluable Francis Pileggi draws to his readers' attention the latest case to hold that legal liability will not result from a failure to come up to best practice:

The best way to explain the noteworthiness, for those engaged in corporate litigation, of the recent Delaware Chancery decision in Wilkin v. Narachi, C.A. No. 12412-VCMR (Del. Ch. Feb. 28, 2018), is to quote from the Court’s introduction: “This case … is a prime example of the difference between a best practice and a legal obligation . . . but Plaintiff fails to point to a single legal obligation that directors violated … [and] Plaintiff has not pled facts that give the Court reason to doubt that these [unexpectedly less successful] outcomes stemmed from rational, good faith decisions of faithful, loyal directors.”

It seems there may be one of to things going on here. First, best practice may differ from "common prudence." On this issue, cf. Dan Laidman, When the Slander Is the Story: The Neutral Reportage Privilege in Theory and Practice, 17 UCLA Ent. L. Rev. 74, 104 (2010) ("While rare, it is not unheard of for courts to look to journalistic bestpractices in the same way that they use customs in other industries as proxies for reasonableness and negligence when determining tort liability."). But see Niva Elkin-Koren & Orit Fischman-Afori, Taking Users' Rights to the Next Level: A Pragmatist Approach to Fair Use, 33 Cardozo Arts & Ent. L.J. 1, 22 (2015) ("Rothman claims that such [fair use] BestPractices, at best, reflect wishful thinking and not the de-factoindustrycustom, and at worst, create reality but do not describe it").

Second, because negligence is not a relevant standard in Delaware corporate law--the duty of care is violated by gross negligence--perhaps industry practice is less relevant than tort law.

Interestingly, according to Westlaw, no Delaware court has ever cited The TJ Hooper.

03/18/2018

FOR years, discussions of America’s public markets have usually featured a lament for their dwindling appeal. According to Jay Ritter of the University of Florida, the number of publicly listed companies peaked in 1997 at 8,491 (see chart). By 2017 it had slumped to 4,496. True, many of the companies that went public in the internet’s early days should never have done so. But the decline worries anyone who sees public markets as the best way for ordinary investors to benefit from the successes of corporate America.

The mood right now is more buoyant. ... “There are plenty of signs that IPO activity is about to surge,” says Kathleen Smith of Renaissance Capital, a research firm.

The question is whether one quarter a revival makes. ...

Underlying these concerns is an older one—that the vast and varied costs of first bringing shares to market, and then remaining public, are just too high. These costs include bankers’ and lawyers’ fees, the risk of class-action litigation, the need to reveal commercially sensitive information that could benefit rivals, and the prospect of fights with corporate raiders who want juicier returns for shareholders and social activists who want executives to pay heed to their values. Added to all these are public reporting and tax requirements that private companies can often avoid.

Mr Ritter attributes much of the decline in the number of companies that are listed to the difficulty of being a small public company.

Hello? Haven't I been saying that for years? See, e.g., Corporate Governance and U.S. Capital Market Competitiveness (October 22, 2010). UCLA School of Law, Law-Econ Research Paper No. 10-13. Available at SSRN: https://ssrn.com/abstract=1696303

This essay was prepared for a forthcoming book on the impact of law on the U.S. economy. (The American Illness: Essays on the Rule of Law) It focuses on the impact the corporate governance regulation has had on the global competitive position of U.S. capital markets.

During the first half of the last decade, evidence accumulated that the U.S. capital markets were becoming less competitive relative to their major competitors. The evidence reviewed herein confirms that it was not corporate governance as such that was the problem, but rather corporate governance regulation. In particular, attention focused on such issues as the massive growth in corporate and securities litigation risk and the increasing complexity and cost of the U.S. regulatory scheme.

Tentative efforts towards deregulation largely fell by the wayside in the wake of the financial crisis of 2007-2008. Instead, massive new regulations came into being, especially in the Dodd Frank Act. The competitive position of U.S. capital markets, however, continues to decline.

This essay argues that litigation and regulatory reform remain essential if U.S. capital markets are to retain their leadership position. Unfortunately, the article concludes that federal corporate governance regulation follows a ratchet effect, in which the regulatory scheme becomes more complex with each financial crisis. If so, significant reform may be difficult to achieve.

Maybe the whole idea of student evaluations is a stupid leftover of the 60s. When I was in law school at @UVALaw there were no student evaluations. Prof Mike Dooley told me as long as the students weren't burning him in effigy outside the Dean's office, all was well. https://t.co/EAQYddVbYc

In a new opinion, Vice Chancellor Slights takes up an interesting case. The facts are complicated, but basically boil down to this: On a seven person board, all of the directors lacked independence a director and an asset management firm with whom the nominal defendant corporation engaged in various transactions. Curiously, however, plaintiff did not claim that a majority of the board was interested in the challenged transactions. The defendants therefore argued that the transaction had been properly approved by a majority of the disinterested directors and that section 144(a)(1) therefore had been satisfied. Accordingly, defendants argued, the business judgment rule is the correct standard of review not the entire fairness standard.

VC Slights' detailed analysis is bookended as follows:

Our case law interpreting Section 144(a)(1) is murky at best. ... I am satisfied that compliance with Section 144(a)(1) does not necessarily invoke business judgment review of an interested transaction.

Conflicted interest transactions today are governed by so-called interested director statutes, of which DGCL § 144 is typical. Section 144(a) states that an conflicted interest transaction shall not be “void or voidable solely” because of the director’s conflict or “solely because the director or officer is present at or participates in the meeting of the board or committee which authorizes the contract or transaction, or solely because any such director’s or officer’s votes are counted for such purpose,” provided at least one of three conditions are satisfied. Subsection (a)(1) shields transactions approved by “a majority of the disinterested directors” provided there has been full disclosure of the material facts relating both to the transaction and to the director’s conflict of interest. Subsection (a)(2) shields transactions “specifically approved in good faith by vote of the shareholders,” again following full disclosure. Subsection (a)(3) shields a transaction that is “fair as to the corporation as of the time it is authorized, approved or ratified, by the board of directors, a committee or the shareholders.”[1] The three subsections are in the disjunctive, so satisfying any one will invoke the statute’s protection for the challenged transaction.

Under DGCL § 144(b), an interested director may be counted towards the quorum necessary for board action.[2] Subsection (a) rejects common law cases like Globe Woolen that invalidate a conflicted interest transaction solely because the interested director voted on the transaction. Subsection (a) also rejects common law cases invalidating transactions in which a majority of the board is interested. So long as the transaction is approved by a majority of disinterested directors, even if they be less than a quorum, the transaction is not void or voidable solely on any of those grounds.

Because the statute does not fully validate related party transactions, but only shields them from per se invalidation, a critical question is whether valid action under the statute precludes judicial review of a properly approved transaction. Unfortunately, there is surprisingly little case law on the effect of approval by the disinterested directors. The leading Delaware case remains Puma v. Marriott,[3] in which a disgruntled Marriott Corporation shareholder challenged the corporation’s purchase of six other companies from the Marriott family. At the time of the transaction, the Marriott family collectively owned 44% of Marriott Corporation’s stock. Four of the nine directors were Marriott family members. The acquisition was unanimously approved by the five disinterested directors. Without reference to § 144, the court held that on those facts the business judgment rule was the applicable standard of review.

Some commentators contend the same rule applies to transactions reviewed under § 144(a)(1).[4] Dicta in at least one Delaware supreme court decision seemingly supports this view.[5] It also is supported by a few decisions from other jurisdictions interpreting comparable statutes.[6]

Contrary to the VC, I don't regard the state of Delaware law as "murky." Rather, I would describe it as "sparse but reasonably well settled." As I have written elsewhere:

... even in cases implicating loyalty claims, Delaware corporate law places great emphasis on deference to director decisions. Under DGCL section 144(a), approval by a majority of fully informed and disinterested directors effectively immunizes a related-party transaction from meaningful judicial review. Per Puma v. Marriott, approval by disinterested directors invokes the business judgment rule as the standard of review for conflicted-interest transactions. Likewise, in Marciano v. Nakash, the Delaware Supreme Court held that “approval by fully-informed disinterested directors under section 144(a)(1) . . . permits invocation of the business judgment rule and limits judicial review to issues of gift or waste with the burden of proof upon the party attacking the transaction.”

One can debate whether Marciano's statement is dicta (I've wobbled on that issue myself), but it's still the leading Delaware Supreme Court decision on point (pace Benihana).

There is, however, a more interesting wrinkle. Delaware courts have not always read section 144 literally. Back to my Corporate Law treatise:

In Fliegler v. Lawrence, defendant John C. Lawrence was president of Agau Mines, Inc., a gold and silver mining corporation. Lawrence had individually acquired some antimony properties, which he offered to Agau. In consultation with Lawrence, the Agau board declined on grounds that the corporation’s legal and financial position did not allow it to undertake the venture. Lawrence then formed the United States Antimony Co. (USAC), to which the properties were transferred. USAC granted Agau an option to acquire USAC in exchange for Agau stock, which Agau eventually exercised. The decision to exercise the option was approved by the shareholders. Dissenting Agau shareholders then sued.

Defendants relied on DGCL § 144(a)(2) in arguing that shareholder approval relieved defendants of the common law obligation to prove the transaction’s fairness. The court agreed that shareholder ratification of a conflicted interest transaction shifted the burden of proof from the defendants to the objecting shareholders. On the facts of this case, however, the burden would not shift. A majority of the shares voted in favor of the transaction had been cast by the interested defendants in their capacities as Agau shareholders. In the court’s view, those votes should not count. Instead, only the votes cast by disinterested shareholders count and only the vote of a majority of such disinterested shareholders has the desired burden-shifting effect.

The court’s reading of § 144 is inconsistent with a plain-meaning approach to statutory construction. Section 144(a)(1) requires approval by “a majority of the disinterested directors,” but § 144(a)(2) requires only approval by a “vote of the shareholders.” The statute’s drafters thus inserted a requirement of disinterest in (a)(1) but not in (a)(2). Accordingly, on the face of the statute, shareholder approval ought to be effective even if the shareholders are not disinterested.

Although the court was not faithful to the statutory language, its interpretation does appeal to common sense. Cases arising under these statutes confront courts with issues of ethics and morality, principles of fiduciary obligation, and situations in which the facts are all important. Consequently, the courts tend to treat the precise language of these provisions somewhat cavalierly.

Accordingly, the VC could have said something like this: Although section 144(a)(1) on its face only requires that the directors be disinterested, a requirement that such directors also be independent of those who have an interest in the transaction is implied. Cf. Davidowitz v. Edelman, 153 Misc. 2d 853, 857, 583 N.Y.S.2d 340, 343 (Sup. Ct. 1992), aff'd, 203 A.D.2d 234, 612 N.Y.S.2d 882 (1994) ("The close business and personal relations demonstrated among the committee members, the board and Edelman preclude this court from finding that the committee possessed the required disinterested independence" of a special litigation committee seeking termination of derivative litigation.); Egleston ex rel. Chesapeake Energy Corp. v. McClendon, 2014 OK CIV APP 11, ¶ 16, 318 P.3d 210, 217 ("For a director to be “independent,” he or she must be both disinterested and free from ‘the influence of other interestedpersons.’ Rales, 634 A.2d at 936;").

As a federal court has observed, citing Delaware precedents, "For a director to be “independent,” he or she must be both disinterested and free from “the influence of other interestedpersons.” Sachs v. Sprague, 401 F. Supp. 2d 159, 164 (D. Mass. 2005). Why should the converse not be equally true? In other words, for a director to be disinterested s/he must be "free from “the influence of other interestedpersons"?

03/15/2018

There are numerous reports that my friend and former UIUC College of Law colleague Ron Rotunda has passed away. My thoughts and prayers go out to his family.

We were deeply saddened to learn of the passing of our dear colleague Professor Ronald Rotunda yesterday. Professor Rotunda had an extraordinary legal career and was a prolific and well-respected scholar and a beloved colleague and professor.

The passing of @RonaldRotunda is a sad loss to the law, legal scholarship, and especially @Chapman_Law where he was a dear colleague, always full of energy and eager to talk big ideas, a prolific writer and beloved by his students. He will be greatly missed.

Located in UCLA’s back yard, the Silicon Beach economy is exploding. This inaugural conference will explore the legal and policy issues faced by more than 500 tech startups, incubators and accelerators as well as companies like Snap. Attend the conference to understand the issues critical to this burgeoning hub of entrepreneurship in West LA and the beach cities of Santa Monica, Playa Vista and Venice.

The Silicon Beach Conference will address three important areas all with a focus on the businesses we see here: governance, financing and acquisitions. Our governance panel will look at various structural approaches, including dual class stock structures. The financing panel will explore the SEC’s pro-IPO initiatives as well as the emerging Initial Coin Offering debate. Finally, the panelists will look to the LA and Silicon Beach acquisitions market and how to support and grow M&A in Silicon Beach.

“People who are doing this at the corporate level will rapidly get their comeuppance … If you’re operating within a capitalist environment like let’s say the executives and management of Qantas, who are being paid disproportionately well, you don’t also get to be a social radical. And you don’t get to salve your conscience for receiving a pay cheque that’s 300 times the pay cheque of the average worker by pretending you’re a social revolutionary. It’s an appalling sleight of hand.

“In addition, you don’t get to invite the radical leftists into your corporate utopia without opening the door to a major fifth column. If you are naive enough to think that the demand of the radicals for the transformation of your company is going to end with a few requests for language transformation then you’re a complete bloody fool.

“It’s staggering to me to watch the corporate elite types kowtow to the radical Marxists. They do it to virtue signal or because they’re feeling guilty or maybe because they’re facing genuine pressure and don’t want to stand up against it. But they’re playing a game that will punish them intensely.”

Presser also praised Conservative Thought and Policy Program, which he termed “unique and offered in a uniquely well-run university.” After four decades in the academy, he concludes that “real diversity of opinion is increasingly rare in higher education,” he said.

“Those in charge in Boulder, whom I met when I interviewed for this position, have understood that bringing through a series of scholars committed to the search for timeless truths, and a deeper understanding of human nature, is a partial antidote to some of the difficulties now confronting our divided society,” Presser said, concluding:

“It is a an honor to follow those distinguished teachers who have held this position in the past, a privilege to be asked to participate in encouraging the conservation of what is best in our culture, and a joy to be invited to spend a year in a wonderful setting implementing Socrates’s adage that the unexamined life is not worth living.​”

Presser is a recognized expert in the history of the law and the U.S. Constitution in the 18th century, when the “founding principles of the United States took shape.” His published works emphasize the grounding of the Constitution and the American legal system in “the timeless principles of justice, philosophy and law, which made up what the authors of the Federalist described as the emerging ‘science of politics,’” Presser stated.

I have long been a great admirer--sadly, mostly from a distance--of Presser's work in corporate law and legal history, as well as his insightful writing from a conservative perspective on politics and current affairs. He's very, very high on the list of people in my business that I wish I knew better.

In any case, congratulations to Presser and to Colorado for having made such a splendid choice.

Mar 19, 2017 - Mark Pulliam has a thoughtful review of Stephen presser's interesting new book that uses a series of biographical sketches of law professors (some of whom want on to bigger and better things, such as Barack Obama) to muse about the evolution of American legal thought: Law Professors is an ...

Feb 3, 2017 - But Stephen Presser's new book Law Professors: Three Centuries of Shaping American Law scored a lengthy and very positive review in The Economist: If the fight [over Supreme Court nominations] has become more heated, it is because the authority of the judiciary in America, notably its ability “to ...

Jan 30, 2017 - And, last but definitely not least, I invoke the great corporate law scholar, Stephen Presser, who was prompted to pen an oped for the Chicago Tribune, appropriately headlined Sen. Sessions and the Smug Self-Satisfaction of the Law Professoriate: The first striking thing about the recent letter signed by ...

Week 3 is "Social Analysis - Putting Catholic Social Teaching to Work." Here are my answers to the discussion questions.

What is one social justice issue that you regard as especially important?

The dignity of every human is the foundation of CST. Each human is a unique person but all share having been made in the image and likeness of God. A just society will therefore respect and protect human life at all stages from conception to its natural death. This is why life issues--abortion, euthanasia, and the death penalty--ought to be at the top of the hierarchy of CST concerns.

What strengths do you see in the Pastoral Circle process? Is it missing anything important?

According to the Ignatian Solidarity website:

The concept of the “pastoral circle” or the “circle of praxis” was introduced in the book, Social Analysis: Linking Faith and Justice, by Joe Holland and Peter Henriot (Orbis, 1980). ... The pastoral circle is a critical, systematic and systemic approach to the reflecting on our human predicament.

The four moments or dimensions of the pastoral circle as: insertion, social analysis, theological reflection, and pastoral planning. All four of these circulate around experience and are concerned for justice. ...

Contact or Immersion: WHAT IS HAPPENING HERE?" When contact is made, a privileged question to be asked is: What is happening to the poor in this situation?" This option for the poor "places a priority on the experiences, views, needs, feelings, and stance of the poor and most vulnerable in a community."

Analysis or Social Analysis: WHY IS THIS HAPPENING? "The question of why such conditions exist will be guided by those whose rights are being vio- lated and whose responsibilities are called upon to change the situation. The language of rights and responsibilities--rooted in the human dignity of each person in community--pushes analytical approaches beyond economic and political causes to social and cultural causes." (23)

Reflection or Theological Reflection: WHAT DOES IT MEAN? "When we come to ask what it means to our faith to evaluate this situation and what is really most at stake in this situation, we can be guided by the church's social teaching about human dignity and solidarity. Every person is made in the image of God. Dignity is not earned; it is a gift. Key to this dimension of the pastoral circle is the influence of Scripture and theological thought.

Response or Pastoral Planning: HOW SHOULD WE RESPOND? "What to do is an inevitable question in the movement around the pastoral circle. Two principles of the church's social teaching orient the threefold response of planning, action, and evaluation. The first is the principle that places action at the lowest level possible--subsidiarity. The second is the principle that reckons the most efficient, equitable, and sustainable use of resources, stewardship."

All of which is diagrammed as:

Candidly, this is not a mode of inquiry I find especially useful. It does not provide guidance as to how to specify the outcome of the process. When used in group settings, it also carries with it an implied relativism because ti suggested that truth arises out of a consensus by a group following the see-judge-act methodology.

The pastoral circle usefully can be situated as a form of reflective learning. Critics of reflective learning have argued that it offers no agreed upon methodology and that there is little empirical evidence demonstrating its real world effectiveness. Further, much reflective thinking is naïve because those undertaking the process simply do not have the knowledge necessary for meaningful understanding of the problem. Finally, reflective learning tends to be self-affirming rather than transformative. In particular, it privileges personal feelings as the most authentic form of analysis.

The discussion of immigration in the lecture is an example. Their process is focused on what's in front of their noses and what they feel. There's no big picture analysis of the costs and benefits of immigration policy.

What about the Catholic teaching on immigration challenges you, and why? Which of the seven themes of Catholic Social Teaching seem to connect most closely with the Church’s teaching on migrants?

Immigration Is a great example of the limits of CST as a basis for real world policy making. At a minimum, it implicates the themes of The Preferential Option for the Poor and Vulnerable and Solidarity. As The USCCB explains, the preferential option is founded on the principle that "A basic moral test [of a society or nation] is how our most vulnerable members are faring." As for solidarity, "We are one human family whatever our national, racial, ethnic, economic, and ideological differences. We are our brothers and sisters keepers, wherever they may be."

People have the right to migrate to sustain their lives and the lives of their families.

and that:

A country has the right to regulate its borders and to control immigration.

At some point, those principles become irreconcilable. Regulating borders and controlling immigration inevitably means that some migrants won't be admitted. The Bishops claim that the two principles do not negate each other because they must be. understood in light of a third principle:

A country must regulate its borders with justice and mercy.

Granted, the Church properly is concerned less with rigid codes of conduct that with promoting sound context-based judgment. It trains us to a moral life emphasizing the habitual private exercise of truthfulness, courage, justice, mercy, and the other virtues. But it is not obvious that the principles of justice and mercy help us decide whether the cut off age for Dreamers should be 18, 21, or 30.

As such, I find the broad and amorphous statements of moral norms typical of Catholic social teaching (and much commentary thereon) a blunt instrument poorly suited to the sort of fine detail work demanded of lawyers, judges, and legislators.

Think of a particular social issue you could address in your own ministry setting or with a group of like-minded disciples. Briefly summarize each of the four steps of the Pastoral Circle process you could use to address that issue in your context.

An issue that has been much on my mind of late has been the way we treat people at the end of their life (perhaps because I'm pushing 60!). All too often we warehouse the elderly in assisted living or nursing homes, where their care is all too often subpar.

Having identified the problem, gather a group of likeminded persons who share that concern.

Brainstorm about possible solutions. Are there regulations that need to be reformed? Are there new laws needed? is additional funding needed.

Develop a plan of action.

Implement it.

Whether that fits within the pastoral circle or not, it strikes me as a plan.

Only horror attends the picture being drawn by some, in which every business, media outlet and even sports league will have to decide which half of the country it’s going to serve, the red half or the blue half, and forever write off 50% of the customer base.

Would Yale really turn away a brilliant young flutist, chemist or poet who, while solidly educated in history, religion and government, is not specifically “versed in issues of social justice”? What about students who have pursued courses based on great works of the past? Must they be versed in contemporary views of social justice too? Besides, which causes constitute social justice?

03/06/2018

In the weeks since the Parkland school shooting, big U.S. companies have found themselves in a familiar position: pressured to act on controversial social and political issues where government won't.

It's blamed (for lack of a better word) on millennials:

“Millennials care, and there's more of them now,” Rick Goings, chief executive officer of Tupperware Brands Corp., said in an interview at the World Economic Forum in Davos, Switzerland in January. ... What's different now, executives say, is the potent combination of social media and younger consumers who are reluctant to purchase products from, or work for, companies that don't align with their values.

I have a slightly different theory. It's not a case of Republican fat cats abandoning their principles in the pursuit of urban coastal millennial hipsters. It's that today's CEOs used to be the Yuppies Christopher Lasch called the new elites. Back when they were young, they embraced a value set now largely shared by Blue State types:

"[T]he new elites, the professional classes in particular, regard the masses with mingled scorn and apprehension." For too many of these elites, the values of "Middle America" - a/k/a "fly-over country" - are mindless patriotism, religious fundamentalism, racism, homophobia, and retrograde views of women. Middle Americans, as they appear to the makers of educated opinion, are hopelessly shabby, unfashionable, and provincial, ill informed about changes in taste or intellectual trends, addicted to trashy novels of romance and adventure, and stupefied by prolonged exposure to television. They are at once absurd and vaguely menacing."

Today's CEOs haven't changed their minds about the people Hillary called The Deplorables. So why should we expect anything other than urban coastal values from them?